By: Roger J. Buffington, Esq.
Buffington Law Firm’s California trust litigation attorneys frequently are involved in either bringing or defending against trust contests. A “trust contest” is a situation in which a party brings a lawsuit seeking to nullify all or a portion of a California living trust, usually in a situation where a person or person has been disinherited. There are an infinite number of scenarios that give rise to trust contests. Sometimes, after a person passes away it comes to light that one of his or her children persuaded the decedent to significantly or drastically amend the decedent’s living trust to disinherit others in favor of the one child. If the decedent was elderly, ill and/or weak of mind, the change to the estate plan may have been the product of undue influence or even outright incapacity, i.e. a loss of testamentary capacity. Sometimes the trustor or trustors are ill, elderly, and very vulnerable to being influenced to change a longstanding and well-crafted estate plan to suddenly benefit the influencer.
1. Discovering the need for a trust contest.
A. Through Notice per Probate Code Section 16061.7 (“120 Day Letter”) Generally, events will play out beginning with a Notice to Beneficiaries letter from the trustee. This letter is required and prescribed by Probate Code Section 16061.7 and a new successor-trustee (the person in charge of the trust following the death of the trustors) is required to send such letter upon all or a portion of the trust becoming irrevocable to all beneficiaries of the trust, and all heirs-at-law of the trustors. An heir-at-law is someone who would inherit in accordance with the law of intestacy, i.e. if there were no will or trust at all governing the estate. This letter essentially notifies the beneficiaries and heirs-at-law that a) the Trust is now partially or fully irrevocable; b) who and where the successor-trustee is located, i.e. the principal place of administration of the trust; c) that the notified people have a right to receive a copy of the trust; and d) anyone who intends to contest the trust must do so within a strictly limited period after receiving the Notice to Beneficiaries. Specifically, the notice is required to say: “You may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is delivered to you during that 120-day period, whichever is later.” [See generally Cal. Prob. Code Section 16061.7].
B. Through Discovery after death. Sometimes a person close to the decedent who is successor-trustee (or who falsely claims to be) does not send a 120 Day Letter and simply starts misappropriating the decedent’s assets in total disregard of the terms of the decedent’s trust. Or a successor-trustee simply refuses to communicate with the beneficiaries and/or heirs at-law-at all. When this happens, it is an obvious and serious warning sign that legal action is necessary.
C. Through discovery before death. Occasionally, a person may discover while the subject trustor is alive that a person, usually an elderly or ill person, is being unduly influenced to change their trust through undue and improper persuasion. When this happens it is sometimes possible to take corrective legal action while the trustor is still alive.
2. Time is of the essence to consult legal counsel.
Upon receiving a Notice to Beneficiaries (often referred to as a “120 Day Letter”) it is imperative that the recipient act promptly to receive a copy of the trust and examine it to verify that all appears well. Buffington Law Firm’s trust litigation team has dealt with innumerable situations in which a recipient receives the letter, obtains a copy of the trust from the successor-trustee, and then is shocked to discover that someone got to the trustor late in life (sometimes literally on the decedent’s deathbed) and caused the trustor to disinherit the rest of the family. While this can be legitimate, sometimes it clearly is not. In such a case it is vital that the interested party take action without delay. The deadlines set forth in Probate Code Section 16061.7 are strict. Courts enforce these deadlines and when you receive such a letter, the clock is running. We recommend that if you have any concerns that you engage us for a free legal consultation to ascertain whether there is really a problem. This can avoid blowing a deadline and can give peace of mind.
Similarly, if a person determines through other means that there is a situation in which legal action is or may be appropriate, it is important to seek legal counsel timely. Nothing good will come from delay. In such situations there is a danger that the person who is benefiting from wrongful changes to a trust will dissipate the trust assets or otherwise cover their tracks. If someone waits too long to bring a trust contest they may be barred by the statute of limitation or the doctrine of laches. These can time-bar even the most meritorious claim.
If you believe that you have a situation that may require you to bring a trust contest, Buffington Law Firm will be pleased to offer you a free legal consultation. In this consultation we can discuss the situation and help determine whether legal action is appropriate. There is never any charge, or any commitment by you, and of course all consultations are completely confidential and protected by the attorney-client privilege.